Citation Nr: 0802238
Decision Date: 01/18/08 Archive Date: 01/29/08
DOCKET NO. 05-15 219 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in
Philadelphia, Pennsylvania
THE ISSUE
Entitlement to a total rating based upon individual
unemployability due to service-connected disabilities (TDIU).
REPRESENTATION
Appellant represented by: Pennsylvania Department of
Military and Veterans Affairs
WITNESS AT HEARING ON APPEAL
The veteran and his spouse
ATTORNEY FOR THE BOARD
A. J. Turnipseed, Associate Counsel
INTRODUCTION
The veteran had active service from February 1996 to April
2003.
This matter comes before the Board of Veterans' Appeals
(Board) from a February 2004 rating decision of the above
Department of Veterans Affairs (VA) Regional Office (RO).
In August 2006, the veteran and his wife testified before the
undersigned Veterans Law Judge at a Travel Board hearing at
the RO. A transcript of the hearing is associated with the
claims file.
In December 2006, the Board granted a motion to advance this
case on the docket. See 38 U.S.C.A. § 7101 (West 2002); 38
C.F.R. § 20.099(c) (2007).
This case was previously before the Board in January 2007, at
which time the Board determined additional development was
necessary. The requested development has been completed.
Unfortunately, however, further development is needed.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will provide
notification when further action is required on the part of
the veteran.
REMAND
The veteran contends that, since April 2003, he has been
unable to secure and maintain gainful employment due to his
service-connected disabilities.
Total disability ratings for compensation based on individual
unemployability may be assigned when the combined schedular
rating for the service-connected disabilities is less than
100 percent and when it is found that the service-connected
disabilities are sufficient to produce unemployability
without regard to advancing age, provided that, if there is
only one such disability, this disability is ratable at
60 percent or more, or, if there are two or more
disabilities, there is at least one disability ratable at 40
percent or more and additional disabilities to bring the
combined rating to 70 percent or more. 38 C.F.R. §§ 3.340,
3.341, 4.16 (2007). If the above percentages are not met,
the veteran's claim may still be referred to the Director,
Compensation and Pension Service for an extraschedular
rating, when the evidence of record shows that veteran is
"unable to secure and follow a substantially gainful
occupation by reason of service-connected disabilities." 38
C.F.R. § 4.16(b).
The veteran's service-connected disabilities, alone, must be
sufficiently severe to produce unemployability. Hatlestad v.
Brown, 5 Vet. App. 524, 529 (1993). In determining whether
unemployability exists, consideration may be given to the
veteran's level of education, special training, and previous
work experience, but not to his age or to any impairment
caused by non-service-connected disabilities. 38 C.F.R. §§
3.341, 4.16, 4.19. The veteran's employment history, his
educational and vocational attainment, as well as his
particular physical disabilities are to be considered in
making a determination on unemployability.
The veteran is currently service-connected for
supraventricular tachycardia, rated as 10 percent disabling;
tinnitus, rated as 10 percent disabling; post-operative
scarring of the right pectoral area, rated at 10 percent;
post-operative scarring of the right scapular area, rated at
10 percent; recurrent impingement syndrome of the right
shoulder, rated as noncompensable (zero percent); migraine
headaches, rated as noncompensable; hypertension, rated as
noncompensable; and post-operative scarring of the right
inner thigh, also rated as noncompensable.
The veteran's combined service-connected disability rating is
30 percent. See 38 C.F.R. § 4.25. Because the veteran does
not have one service-connected disability rated as at least
60 percent, or two or more disabilities with a combined
rating of at least 70 percent, with one disability rated at
40 percent, the initial criteria for schedular consideration
for the grant of TDIU under 38 C.F.R. § 4.16(a) are not met.
However, he might nonetheless be entitled to TDIU based on 38
C.F.R. §§ 4.l6(b), 3.32l(b).
During the August 2006 hearing, the veteran and his wife
testified that the veteran's service-connected heart
disability, inclusive of supraventricular tachycardia and
hypertension, prevents him from maintaining substantially
gainful employment. The veteran testified that he has
episodes of tachycardia manifested by pressure and pain in
his chest, as well as syncope, once a week and that he has to
go to the VA medical center frequently because of his high
blood pressure. He and his wife testified that he has had
three jobs in the last year, and lost one because he had to
go to the hospital frequently. He stated that he has worked
in an administrative position, as a tow truck driver, and on
security jobs, and he had episodes of tachycardia on all of
them.
The veteran also testified that he has applied for many jobs
but they eventually ask about his medical problems, which he
believes is a reason for his not being hired. The veteran's
representative corroborated the veteran's testimony stating
that he had knowledge of the veteran applying for a county
prison job as a guard but did not get it because of his
medical condition. The representative also stated that the
veteran was unable to attend many of their appointments
because of his tachycardia episodes.
The Board considers the testimony provided at the August 2006
hearing regarding the veteran's difficulty in maintaining a
job to be credible, as it is supported by the evidence of
record. In this regard, the Board notes there is evidence
showing the veteran held at least three different jobs
between October 2003 and February 2006, including as a youth
counselor, a state policeman, and a warehouse supervisor.
See VA outpatient treatment records July 2003 to January
2004; see also February 2006 VA orthopedic examination
report. In fact, the February 2006 orthopedic VA examination
report reflects the veteran reported missing work because of
his service-connected right shoulder disability. Despite the
foregoing, there is no indication in the record as to why the
veteran was unable to maintain his jobs; nor is there any
objective evidence of record addressing whether the veteran
is unemployable due to his service-connected disabilities.
In this regard, the Board notes that the February 2004 rating
decision denying the veteran's claim states that the veteran
was asked to submit medical evidence showing his service-
connected disabilities prevented him from obtaining and
maintaining gainful employment via an August 2003 letter.
Upon review of the August 2003 letter, however, the Board
finds the August 2003 letter requested only that the veteran
submit evidence showing his service-connected disabilities
had increased in severity. While the veteran was informed
that entitlement to TDIU may be established based upon
schedular consideration under 38 C.F.R. § 4.16(a), he was not
informed that entitlement to TDIU may be established based
upon an extraschedular rating under 38 C.F.R. § 4.16(b). As
a result, the Board finds it is necessary that the
evidentiary record be developed with regard to whether the
veteran's service-connected disabilities affect his
employability, to include providing the veteran with adequate
notice in this regard.
The Board also notes the veteran's wife testified that his
heart medication was increased by VA in October 2005. In
addition, a printout dated in August 2005 reflects that the
veteran reported for several appointments between March and
August 2005, including an electrocardiogram (EKG). However,
the most recent outpatient treatment records in the claims
folder are dated in January 2004. Therefore, it appears that
there are additional VA treatment records available which
must be obtained prior to a final determination of the
veteran's claim. See Dunn v. West, 11 Vet. App. 462, 466-67
(1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).
In this regard, the Board notes that, while the record
contains VA examination reports dated in February 2006, the
physicians who evaluated the veteran did not address the
impact of the veteran's service-connected disabilities on his
ability to perform specific industrial functions required to
work or the degree to which the service-connected
disabilities affect his capacity to work. Such additional
findings and opinions are needed before the Board can fairly
decide the merits of this claim for TDIU. See 38 U.S.C.A. §
5103A(d); 38 C.F.R. § 3.159(c)(4) (duty-to-assist provisions
include the duty to provide medical examinations or obtain
opinions if it is determined necessary to decide a claim).
Finally, the Board notes the August 2006 hearing transcript
reflects that the veteran submitted additional medical
records in support of his claim, along with a statement
waiving RO consideration of that evidence in the first
instance. Although the signed waiver is included in the
record, it does not appear that the newly submitted evidence
is associated with the claims file.
Accordingly, the case is REMANDED for the following action:
1. Ensure that all VCAA notice required by
38 U.S.C.A. § 5103a, 38 C.F.R. § 3.159, and all
subsequent interpreting authority are fully
complied with, including notifying the veteran
of the information or evidence necessary to
substantiate his claim for a TDIU rating
pursuant to 38 C.F.R. §§ 3.340, 3.341, and 4.16
(b). The veteran should be specifically asked
to provide information and evidence regarding
any and all employment since April 2003,
including the reasons why he was unable to
continue working in each respective position.
2. Obtain all records of VA treatment or evaluation
of the veteran dated from January 2004 to the
present and associate them with the claims file.
The efforts to obtain these records must be
documented in the claims file. If no records
are available or cannot be obtained, it should
be so stated, in writing, and included in the
claims file.
3. Associate with the record the evidence that the
veteran submitted when he appeared for his
August 2006 Travel Board hearing hearing. If
that evidence cannot be located, the veteran
should be notified in writing and asked to
provide VA with copies of these materials.
4. After completion of the above, the AOJ should
make arrangements with the appropriate VA
medical facility for an employability opinion by
an appropriate specialist(s). The claims file
and a list of all currently service-connected
disabilities should be made available to the
physician(s) for review, and the examination
report must reflect that such review was
accomplished. The physician(s) should offer an
opinion addressing whether it is at least as
likely as not (50 percent or greater
probability) that the veteran is incapable of
securing and maintaining substantially gainful
employment due to his service-connected
disabilities.
a. In offering this opinion, the examiner(s)
must consider the degree of interference
with ordinary activities, including
capacity for employment, caused solely by
the veteran's service-connected
disabilities, as distinguished from any
non-service-connected physical condition.
b. In addition, if it is determined the
veteran is indeed incapable of obtaining or
retaining substantially gainful employment,
the examiner(s) should state the
approximate date of onset of such
occupational impairment.
c. A rationale must be provided for all
opinions. If an opinion cannot be
rendered, without resorting to pure
speculation, the examiner should clearly
and specifically so specify in the report,
and explain why this is so.
5. After completing the above and any additional
development deemed appropriate, the issue on
appeal should be readjudicated. Readjudication
should specifically consider whether the case
warrants referral to the Under Secretary for
Benefits or to the Director of the Compensation
and Pension Service, pursuant to 38 C.F.R. §
3.321(b), for assignment of an extraschedular
rating. If the benefit sought on appeal is not
granted to the veteran's satisfaction, the
veteran and his representative should be provided
with a supplemental statement of the case and
afforded the appropriate opportunity to respond
thereto.
The case should then be returned to the Board for further
appellate consideration, if otherwise in order. The Board
intimates no opinion as to the ultimate outcome of this case.
The veteran need take no action unless otherwise informed.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007).
________________________________
ANDREW J. MULLEN
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a final decision
of the Board of Veterans' Appeals is appealable to the U.S.
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a final
decision of the Board on the merits of the appeal. 38 C.F.R.
§ 20.1100(b) (2007).